Citation Nr: 1010960
Decision Date: 03/23/10 Archive Date: 03/31/10
DOCKET NO. 06-20 046 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder, to include undifferentiated schizophrenic reaction.
2. Entitlement to nonservice-connected pension benefits.
REPRESENTATION
Appellant represented by: Colorado Division of Veterans
Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and C.W.
ATTORNEY FOR THE BOARD
Patricia A. Talpins, Counsel
INTRODUCTION
This matter initially came before the Board of Veterans'
Appeals ("BVA" or "Board") on appeal from a September 2005
rating determination of the Department of Veterans Affairs
("VA") Regional Office ("RO") in Indianapolis, Indiana in
which the RO reopened the appellant's previously denied claim
of entitlement to service connection for undifferentiated
schizophrenic reaction, but denied the claim on its merits.
In that same rating determination, the RO denied the
appellant's claim of entitlement to nonservice-connected
pension benefits. The appellant, who has verified active
duty for training with the United States Marine Corps from
July 11, 1972 to January 8, 1973, and from July 1, 1973 to
July 14, 1973 with subsequent service with the United States
Marine Corps Reserves from January 1973 to October 1974,
appealed that decision to the BVA. Thereafter, the RO
referred the case to the Board for appellate review.
The appellant testified at a personal hearing conducted at
the RO before the undersigned Veterans Law Judge in August
2008. The Board observes for the record that the appellant
appeared unrepresented at his hearing and stated his desire
to proceed with his hearing without representation even
though an unrevoked "Appointment of Service Organization"
dated in July 1975 exists in the claims file. August 2008 BVA
hearing transcript, p. 2.
After reviewing all evidence of record in December 2008, the
Board recharacterized the appellant's new and material
evidence claim as a "claim of entitlement to service
connection for a psychiatric disorder, to include
undifferentiated schizophrenic reaction." In doing so, the
Board agreed with the RO's determination to reopen this
claim, but found that additional development of the claim was
necessary. As such, the merits of the appellant's service
connection claim and his nonservice-connected pension claim
were remanded to the RO. See December 2008 BVA decision.
Although the case has been returned to the Board for further
review, the Board observes that part of the development it
requested in its December 2008 decision has not been
completed. In light of evidence contained in the claims
file, the Board finds that the appellant's claims must be
REMANDED once again to the RO via the Appeals Management
Center ("AMC") in Washington, D.C. in order for the RO to
have the opportunity to complete the outstanding development.
The RO will contact the appellant and inform him if further
action is required on his part.
REMAND
As discussed in the Board's December 2008 decision, the
appellant seeks service connection for a psychiatric disorder
he believes initially manifested during his military service.
August 2008 BVA hearing transcript. In addition, the
appellant contends he is entitled to nonservice-connected
disability pension benefits. Id.
In remanding the appellant's appeal in December 2008, the
Board requested that the
RO (among other things) attempt to associate pertinent
records related to the appellant's psychiatric disorder from
the United States Social Security Administration ("SSA")
with the claims file. December 2008 BVA decision. In this
regard, the Board observed in its remand decision that the
evidence of record revealed the appellant had been awarded
disability benefits from SSA effective February 1975. Id.;
August 2008 BVA hearing transcript; December 2006 SSA
response to request for records. Such evidence included an
SSA Administration Data printout sheet dated in June 2005
that indicated the appellant's SSA disability onset date was
noted to have occurred in August 1974; and that the appellant
had been credited with monthly SSA benefits in 2002, 2003 and
2004. See June 2005 SSA Inquiry Sheet. When the RO attempted
to obtain copies of the appellant's SSA records in the past,
it was notified by SSA that the appellant's original
disability data upon which he was granted SSA disability
benefits had been destroyed. December 2006 SSA response to
request for records. As such, SSA reported that the medical
records requested by the RO could not be sent as the "folder
has been destroyed." Id.
Since the evidence contained in the claims file referenced-
above indicated to the Board in December 2008 that SSA
records pertaining to the appellant and his psychiatric
disorder did in fact exist, the Board remanded the
appellant's appeal to the RO in order for (among other
things) such records to be associated with the claims file.
December 2008 BVA decision; see also March 2005 VA medical
records (VA medical records reflect that the appellant
telephoned his VA medical providers and requested to have
paperwork for SSA filled out).
Thereafter, in April 2009, the RO sent a written request to
SSA for records related to the appellant. See letter from the
RO to SSA. Unfortunately, a review of this records request
reveals that the appellant's social security number and file
number were reported incorrectly. Id. As such, SSA
apparently returned the RO's letter to the RO via facsimile
that same month with a note indicating that the "SSN
["social security number"][was] not found." On its fax
cover sheet, SSA indicated that no medical records requested
by the RO existed as "the person [identified by the RO] did
not file for disability benefits OR the person filed for
disability benefits but no medical records were obtained."
See two-page SSA response received via facsimile in April
2009. Although a handwritten notation in the upper right
corner of the SSA facsimile sheet reflects the appellant's
correct social security number in red ink, there is no
indication in the claims file that this correct social
security number was provided to SSA. Id., p. 1. In fact, the
evidence indicates that a follow-up request with SSA
(containing the correct social security number) was not made
by the RO in light of a December 2009 Supplemental Statement
of the Case ("SSOC") in which the RO stated that the
response it received from SSA "states that you [the
appellant] have never filed for any benefits so they have no
records to provide." December SSOC, p. 2.
In light of the evidence contained in the claims file that
reveals the appellant did file a claim for SSA benefits in
approximately 1975 and has been receiving SSA benefits since
that time that are apparently related to the psychiatric
disorder for which the appellant seeks service connection,
the Board finds that this claim must be remanded once again
in order for the RO to attempt to associate these documents
with the claims file. See Stegall v. West, 11 Vet. App. 268
(1998) (holding "that a remand by this Court or the Board
confers on the appellant or other claimant, as a matter of
law, a right to compliance with the remand orders").
In terms of the appellant's nonservice-connected disability
pension claim, the Board observes that service personnel
records recently associated with the claims file confirm that
the appellant served on active duty for training with the
United States Marine Corps from July 11, 1972 to January 8,
1973 and from July 1, 1973 to July 14, 1973, rather than
active duty; and that the appellant had subsequent service
with the United States Marine Corps Reserves from January
1973 to at least October 1974. See DD Form 214; personnel
records.
Under the provisions of 38 U.S.C.A. § 1521(a), pension is
payable to a veteran who served for 90 days or more during a
period of war and who is permanently and totally disabled due
to nonservice-connected disabilities which are not the result
of the veteran's willful misconduct. In addition, VA
regulations provide that basic entitlement to pension exists
if a veteran served in the active military, naval, or air
service for 90 days or more during a period of war; or served
in the active military, naval, or air service during a period
of war and was discharged or released from such service for a
service-connected disability; or served in the active
military, naval, or air service for a period of 90
consecutive days or more and such period began or ended
during a period of war; or served in the active military,
naval, or air service for an aggregate of 90 days or more in
two or more separate periods of service during more than one
period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. §
3.3(a)(3)(emphasis added).
The period of war for the Vietnam Era is the period beginning
on February 28, 1961 and ending on May 7, 1975, inclusive, in
the case of a veteran who served in the Republic of Vietnam
during that period; and the period beginning on August 5,
1964 and ending on May 7, 1975, inclusive, in all other
cases. 38 C.F.R. § 3.2(f).
Additionally, the Board observes that the term "active
military, naval, or air service" includes any period of
active duty for training ("ADT") during which the
individual concerned was disabled from a disease or injury
incurred or aggravated in the line of duty, and any period of
inactive duty training ("IADT") during which the individual
concerned was disabled from an injury incurred or aggravated
in the line of duty. 38 U.S.C.A. § 101(24)(emphasis added).
That is to say, when a claim is based on a period of ADT,
there must be evidence that the individual concerned died or
became disabled during the period of ADT as a result of a
disease or injury incurred or aggravated in the line of duty.
In the absence of such evidence, the period of ADT would not
qualify as "active military, naval, or air service" and the
claimant would not achieve veteran status for purposes of
that claim. See 38 U.S.C.A. § 101(2)-(24).
Thus, even though the evidence of record documents that the
appellant performed active duty for training rather than
active duty, such service does not prohibit the granting of
nonservice-connected pension benefits in this case if the
appellant's claim of entitlement to service connection for an
acquired psychiatric disorder is ultimately granted. As
such, the Board finds that the appellant's nonservice-
connected pension claim must also be remanded once again as
being inextricably intertwined with the appellant's
psychiatric disorder service connection claim.
Accordingly, the case is REMANDED for the following actions:
1. The RO should ensure that all
notification and development action
required by the VCAA and implementing
VA regulations is completed, including
the notification requirements and
development procedures contained in 38
U.S.C.A. §§ 5102, 5103, 5103A and 5107.
See also Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006); Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir.
2006).
2. After reviewing this remand
decision in full, the RO should contact
the Social Security Administration and
submit another request for copies of
any medical records relied upon by that
agency to determine that the appellant
is disabled or continues to be disabled
by Social Security Administration
standards.
3. As the appellant's appeal must be
remanded for outstanding SSA records,
the RO should attempt once more to
contact the appellant and request that
he furnish the complete names and
addresses of his private medical
providers Dr. Kozio and Dr. Blutt
(referenced in the Board's December
2008 decision), in addition to any
other medical providers from whom he
received medical treatment in
association with his psychiatric
problems and whose records have not
been added to the claims file (to
include Methodist Hospital in Indiana,
Edgewater Community Health Center,
Edgewater Community Hospital and the
Oklahoma hospital referenced during his
August 2008 BVA hearing). He should
also be asked to provide specific
authorizations for the release of
medical records from the above-
referenced list. After obtaining the
necessary authorizations, the RO should
associate those records with the claims
file. The appellant should also be
informed, in the alternative, that he
may obtain these records himself and
submit them to the RO.
4. Subsequent to the association of
additional information with the claims
file, the RO should undertake any
additional development deemed
appropriate.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence. If the benefits sought are not granted,
the appellant and his representative (since an unrevoked
"Appointment of Service Organization" exists in the claim
file) should be furnished a Supplemental Statement of the
Case and be afforded a reasonable opportunity to respond
before the record is returned to the Board for further
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United
States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2009).
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).